By Lambert Strether of Corrente
Juliana v. United States is a big and complicated case that has now advanced through two administrations. The original complaint was filed in September 2015; Judge Ann Aiken of Oregon district court rejected the government’s motion to dismiss the case in November 2016. At right is a timeline of the docket from E&E News which I am not going to go through, although it does show the twists and turns the plaintiffs have had to go through.
(I don’t know why the docket has Coffin in April 2016, and not Aiken in September 2016, but it’s complicated…. )
The American Bar Association, in “Can Our Children Trust Us with Their Future?,” describes the scale of the case and the stakes:
The 2016 ruling in Kelsey Cascadia Rose Juliana v. USA is one of the greatest recent events in our system of law. (See Opinion and Order, Case No. 6:15-cv-01517-TC, US District Court for Oregon, Eugene Division. Anne Aiken, Judge, filed 11/10/16.) A group of children between the ages of eight and nineteen filed suit against the federal government, asking the court to order the government to act on climate change, asserting harm from carbon emissions. The federal government’s motion to dismiss was denied. Although I am not involved in the case, I am a lifelong environmentalist, and I teach environmental law (to non-law students). This case is a shining example of what law can be. This case gives me hope that we will not continue to cooperate in our own destruction, and future generations will be able to rely on us to uphold the spirit of the law and purpose behind government.
(Interestingly, Juliana is not the only such case brought by children.) In an interview with the Real News Network, “Why A 20-Year Old Climate Activist is Suing the Federal Government“, Vic Barrett, one of the plaintiffs, sums up the theory of the case:
So Juliana v. United States is a lawsuit that’s being sponsored and facilitated by Our Children’s Trust, which is a nonprofit organization in Eugene, Oregon, that’s been working on atmospheric climate litigation to try to deal with the climate crisis for a while. So our lawsuit was filed in August of 2015, with 21 plaintiffs from all over the country that each have their own complaint, as part of a large declaration that gives a standing to sue the U.S. Federal Government. And basically, . We have proof from administrations going back all the way to the Johnson administration, saying that they knew climate change could be an issue and they knew that fossil fuel infrastructure was causing it. And the U.S Federal Government still chose to take direct action to continue to perpetuate the fossil fuel industry and the U.S. fossil fuel economy that we have.
And we’re asserting that by taking that direct action, . And so, what we’re looking for our in our case is for the court system to mandate that the legislative system and the executive system have to work together in order to come up with a plan that would draw down carbon emissions to a point that’s sustainable for human life, and do what we can to bring the global temperature down to at least one and a half degrees Celsius.
(So they have demands. That’s good!) We are now awaiting the results of the final item on the docket, the oral arguments held before the Ninth Circuit Court of Appeals on June 4 (video). Grist describes the situation as of July 22:
Right now, we’re waiting for a decision from the Ninth Circuit Court of Appeals on whether the case can move forward to the district court, effectively restoring the case to where it was before the Trump administration’s latest appeal knocked it off course. That appeal was just one of the many roadblocks the case has faced since it began in 2015 — the first, an attempt by the Obama administration to toss it out completely. In the ensuing years, the case has bounced between the Oregon District Court, the Ninth Circuit Court of Appeals, and the Supreme Court, where the Trump administration has filed multiple motions and petitions to delay and stop it.
, according to University of Oregon environmental law professor Mary Wood. But it’s unclear when we’ll get that decision. It’s been over a month since the hearing in Portland, and there’s really no upper limit on how long it could take, although the court is likely to take the particular urgency of the case into account.
In this post, I won’t go through all the aspects of Juliana in detail. Instead, I’ll look at climate change litigation internationally, which shows the powerful effect for good that success in Juliana could have. Then I’ll turn to two issues in Juliana: The standing of the plaintiffs, and the public trust doctrine, one of the claims for relief presented in the original brief. Before concluding, I’ll turn to one of the litigators on the topic of what the Federal government knew and when they knew it (spoiler: Everything, since forever).
Status of Climate Litigation Internationally
Global trends in climate change litigation: 2019 snapshot
The Grantham Research Institute on Climate Change and the Environment tracks climate change litigation, and divides the cases into two buckets. From Joana Setzer and Rebecca Byrnes, “Global trends in climate change litigation: 2019 snapshot“:
Climate change litigation cases can be divided into two broad categories:
- Strategic cases, with a visionary approach, that aim to influence public and private climate accountability. These cases tend to be high-profile, as parties seek to leverage the litigation to instigate broader policy debates and change.
- Routine cases, less visible cases, dealing with, for example, planning applications or allocation of emissions allowances under schemes like the EU emissions trading system. These cases expose courts to climate change arguments where, until recently, the argument would not have been framed in those terms. Routine cases might also have some impact on the behaviour and decisions of governments or private parties, even if this is incidental to their main purpose.
Clearly, Juliana is strategic; I’m really including that passage to underline that routine cases like suits against pipelines, oil or gas terminals, “train bombs,” etc. play an important role, especially in “keeping it in the ground. Grantham also looked at the outcomes of climate lawsuits worldwide between 1990 and 2016, summarizing the results in the following chart:
(“Hindering” means that efforts to halt climate change are hindered; “Enhanced,” the reverse.) So you can see that the United States is, by global standards, exceptionally poor at “enhancing” the climate. Juliana, by mandating “that the legislative system and the executive system have to work together in order to come up with a plan that would draw down carbon emissions to a point that’s sustainable for human life” would reverse that unfortunate trend.
When my friends and I were fighting the landfill, standing was an enormous problem; as it turned out, only “abutters” with property in contact with the landfill had standing. (That is, absurdly, I could not sue because, when the landfill liner failed, as landfill liners inevitably do, my watershed would be poisoned.) The plaintiffs in Juliana, however, seem to have achieved it. From The New Yorker, in “The Right to a Stable Climate Is the Constitutional Question of the Twenty-first Century“:
Judge Aiken had found that the plaintiffs had standing to sue because they had demonstrated three things: that they had suffered particular, concrete injuries; that the cause of their injuries was “fairly traceable” to the government’s actions; and that the courts had the ability, at least partially, to remedy these injuries. On the first two parts of standing, the government’s case is weakening by the minute, owing especially to the growing body of attribution science—studies published in peer-reviewed journals that directly link extreme weather events, such as huge hurricanes and raging wildfires, to climate change. “Evidence to meet the standing burden has gotten much stronger,” Ann Carlson, an environmental-law professor at U.C.L.A., told me.
However, in another part of the forest, in a parallel case, another judge disagrees. Forbes, “Children’s Crusade For Judicially Managed Climate Regulation Stalls In Federal Court“:
In Clean Air Council, an activist group and two unnamed minor children claim that actions and inactions by the federal government have deprived them of their Fifth Amendment right to a stable climate. They also argue that the government failed to uphold its common-law public-trust duty to protect the atmosphere and other resources from climate change. These allegations and novel legal theories mirror those advanced successfully in Juliana v. United States, in which a U.S. District Court for the District of Oregon judge denied the Obama Administration’s motion to dismiss.
Before evaluating the substantive issues, however, Judge Diamond held that neither the activist group nor the children had Article III standing to sue. The standing doctrine, he rightly explained, is an essential check that prevents “‘the judicial process from being used to usurp the powers of the political branches.'”
Judge Diamond then examined the individual children’s standing arguments, finding that their alleged physical harms (but not their anxiety over climate change) were “concrete” and “particularized.” Those harms were not, however, “actual or imminent” as required under the law. Their alleged harm, the court explained, is predicated on a “contingent chain of events” that render the children’s claims “at best, a less than certain prediction.”
Not even playing a lawyer on TV, I can’t speak to the merits of these positions. However, my feeling is that standing is often a very useful escape hatch for a court that does not want to rule on a difficult or challenging case.
Juliana: Public Trust Doctrine
Violation of the public trust doctrine is the fourth claim for relief in the plaintiff’s original brief. That claim reads in relevant part:
Plaintiffs are beneficiaries of rights under the public trust doctrine, rights that are secured by the Ninth Amendment and embodied in the reserved powers doctrines of the Tenth Amendment and the Vesting, Nobility, and Posterity Clauses of the Constitution. These rights protect the rights of present and future generations to those essential natural resources that are of public concern to the citizens of our nation. These vital natural resources include at least the air (atmosphere), water, seas, the shores of the sea, and wildlife. .
309. As sovereign trustees, Defendants have a duty to refrain from “substantial impairment” of these essential natural resources. The affirmative aggregate acts of Defendants in the areas of fossil fuel production and consumption have unconstitutionally caused, and continue to cause, substantial impairment to the essential public trust resources. Defendants have failed in their duty of care to safeguard the interests of Plaintiffs as the present and future beneficiaries of the public trust. Such abdication of duty abrogates the ability of succeeding members of the Executive Branch and Congress to provide for the survival and welfare of our citizens and to promote the endurance of our nation.
(The Posterity Clause of the Constitution is in the Preamble: “to ourselves and our Posterity.”) That’s the stuff to give the troops! Here is a lawyerly disquistion on the public trust doctrine from the American Bar Association, “Climate Change Litigation: A Way Forward“, with citations and everything:
Public trust arguments are based on a long-established doctrine from Roman times carried forward in common law jurisprudence for generations. The doctrine asserts that natural resources are the birthright of the public and the government is responsible for preserving the resources for this and future generations in the same way a trustee must preserve a trust. See Brief of Amicus Curiae Law Professors in Support of Plaintiffs-Appellees’ Answering Brief at 5, Juliana v. United States, No. 18-36082 (9th Cir. Mar. 1, 2019). Cases relating to public resources such as water, public access, and fisheries and wildlife have successfully employed this principle. See Richard M. Frank, Symposium, The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, 45 U.C. Davis L. Rev. 665, 671–80 (2012). . See id. at 673. Using the same reasoning, atmospheric trust litigation claims the government has a duty as trustee to protect the atmosphere, air, and a livable climate. Individuals like the Juliana plaintiffs use public trust theory litigation to argue that the government has a duty to act in the public interest by protecting the trust corpus and fulfilling the government’s role as trustee.
(The whole article is worth a read, and has more on standing and “suspect classes.”) Here is the government’s response:
The district court should have dismissed Plaintiffs’ public trust claim for three independent reasons. First, any public trust doctrine is a creature of state law only, and it applies narrowly to only particular types of state-owned property not at issue here. Consequently, there is no basis for Plaintiffs’ public trust claim against the federal government under federal law. Second, even if the doctrine had a federal basis, it has been displaced by statute, primarily the Clean Air Act. Finally, even if any such doctrine had not been displaced, the “climate system” or atmosphere is not within any conceivable federal public trust.
I must say that the public trust doctrine seems so clearly right to me that the government’s response reminds me of Monty Python’s The Argument Clinic: “No, it isn’t.”
What Did They Know and When Did They Know It?
CBS reporter Steve Croft, in “The climate change lawsuit that could stop the U.S. government from supporting fossil fuels,” interviews Julia Olson, an Oregon lawyer, and the executive director of the NGO, Our Children’s Trust, which initiated Juliana:
“[Olson] began constructing the case eight years ago out of this spartan space now dominated by this paper diorama that winds its way through the office.”
OLSON : So this is a timeline that we put together… [D]uring President Johnson’s administration, they issued a report in 1965 that talked about climate change being a catastrophic threat. Every president knew that burning fossil fuels was causing climate change.
Fifty years of evidence has been amassed by Olson and her team, 36,000 pages in all, to be used in court.
OLSON: Our government, at the highest levels, knew and was briefed on it regularly by the national security community, by the scientific community. They have known for a very long time that it was a big threat.
KROFT: Has the government disputed that government officials have known about this for more than 50 years and been told and warned about it for 50 years?
OLSON: No. They admit that the government has known for over 50 years that burning fossil fuels would cause climate change. And they don’t dispute that we are in a danger zone on climate change. And they don’t dispute that climate change is a national security threat and a threat to our economy and a threat to people’s lives and safety. They do not dispute any of those facts of the case.Steve Kroft: So you’ve got them with their own words.
OLSON: We have them with their own words. It’s really the clearest, most compelling evidence I’ve ever had in any case I’ve litigated in over 20 years.
30,000 pages. It looks like there’s a reason Juliana has survived as long as it has.
If we have any lawyers, and especially any climate change lawyers, in the house, I’d very much like to hear of any corrections or additions!
 From the National Geographic:
When young people in the Netherlands sued their government for inaction on climate change, they unexpectedly won. In a decision noted for its bluntness, the court ordered the government to curb carbon emissions 25 percent by next year.
Another ground-breaking success emerged last year in Colombia, where 25 young people won their lawsuit against the government for failing to protect the Colombian Amazon rainforest. The court concluded that deforestation violated the rights of both the youths and the rainforest and ordered the government to reduce it to net zero by 2020.
And a seven-year-old girl in Pakistan gained the right to proceed with her climate change lawsuit on its merits—establishing, in a first for Pakistan, the rights of a minor to sue in court.
The Dutch case has became the model for similarly fashioned lawsuits in Belgium, Ireland, and Canada, and it has inspired other climate cases in countries as far flung as Uganda, New Zealand, Australia, and Norway. The Colombia case has had a similar impact. When the youths there won their case, Boyd says, “Let me tell you, there were lawyers in 100 other countries saying: how can we emulate that decision? We’ve never had such a globally connected system.”
And I think with the climate crisis, what’s particularly like damning about it all, is that people of color, black people, have always been stewards of the earth, they’ve always been stewards of nature and have always taken care of the earth and what we have around us. And so, the fact that these systems, these white supremacist systems, have turned the earth against us is really what motivates me to keep doing the work and keep tapping into my ancestry and keep thinking about who I am and why I’m doing this.
A moment’s thought will show that if China is part of the climate change problem, then white supremacy is not the controlling factor.